I. Leviathan tamed ? The UN System

7The political divide in the post 1945 world, which was gradually installed from about 1947 on¹⁵, was posterior to the installation of universal international organisations, mostly the United Nations and its sister organisations. The principles governing the functioning of these bodies required a high degree of abstraction, a corollary of the need for general consent¹⁶. The United Nations security system was designed to freeze and protect the big powers’ interests. Consequently, the emphasis on sovereignty, equality and state consent, three cardinal factors in the classical European law of nations, was preponderant¹⁷. At the same time, this reinforced and consolidated secondary or small powers’ rights as sovereign states¹⁸.

8If any development drew a strict line between the early modern state system and the post 1945-era, it was the outlawing of war in art. 2 (4) UN Charter¹⁹, according to which the “Members of the Organisation shall refrain, in their international relations from the threat or use of force against the territorial integrity or political independence of any state²⁰”. This prohibition on the use of force in the settlement of disputes, declared a rule of customary international law by the ICJ in the Nicaragua-case (1986²¹), seemed the achievement of attempts to achieve “peace through law”, celebrating the achievements of the process of juridification in a state of “law through peace²²”. The UN Charter restricted the right of any sovereign state to solve quarrels “par une bonne guerre” to the case of self-defence (art. 51 UN Charter²³).

9Sanctions for transgressors of this rule, however, were still as limited as in the 18^th century²⁴. The Security Council, composed of five permanent members, could patrol the world, but only in case of unanimity between these very members who were all parties to the Cold War. From the Korea War on, the UN Security System was in temporary deadlock and paralysis, due to the USSR’s systematic abstention from the Security Council²⁵.

II. Bipolar confrontation

10As the Cold War set in, both the United States and the USSR built up international organisations corresponding to their ideological and geopolitical power ambitions²⁶. The USSR argued from a strict theory of sovereignty and non-intervention. The UN system was seen as legitimate, since it represented all states on an equal basis. Yet, at a regional level, international organisations were classified as either socialist or Imperialistic, and seen as vehicles in an ideological battle. As the Cold War became hot in Latin-America or Asia, Soviet doctrine condemned US intervention. However, the general customary principle of non-intervention did not apply in Eastern Europe, where the USSR crushed dissidence in Hungary (1956) or Czechoslovakia (1968), thanks to a supposed regional custom permitting intervention whereas it had been outlawed for the rest of the world, as an application of the lex specialis-principle²⁷.

11The nuclear stalemate inherent to the armament of the two big powers, paradoxically, reinforced the protection of minor powers. If an attack means total destruction, any armed attack becomes highly improbable²⁸. States with proper means of nuclear deterrence, and thus less dependent on the two superpowers, could therein act with relatively greater freedom. Conversely, states in a precarious situation, such as West Germany, closely watched the “balance of power” in armaments. By contrast to Old Régime or 19^th century diplomacy Concert of Europe- diplomacy, the metaphor did not serve to elaborate a legal structure any more, but became a symbol for a military expenses race²⁹.

I. The consequences of the Cold War: reintroducing Germany

13The immediate aftermath of the war made a reconciliation with the wiped-out German state difficult. France concluded a separate alliance with Britain and the USSR³². European defence was organized against the aggressor of the past war, as the Treaty on the Western European Union explicitly stated³³. It took until 1949 for the NATO-treaty to be signed³⁴.

14From the Soviet point of view, European economic integration, a sidekick of the bigger American Imperialistic design³⁵, was bound to lead to the reaffirmation of an aggressive economic and political revival of West Germany³⁶, or merely served the monopolies of transnational corporations to the detriment of the working class (read: national Communist parties in Western Europe³⁷). The reintroduction of German military elements in NATO, called for by the Americans during the Korean War, reinforced this impression: the EEC and NATO were two equal parts of a strategy to attack the socialist nations: West German monopolies and the American military had concluded an alliance³⁸. For the Russian-led bloc, only the UN-organs had legitimacy to act on the international stage³⁹.

15From the legal point of view, the statute of Germany was a cumbersome affair. Defeated on 8 may 1945, its sovereignty was not restored until the German unification took force on 15 March 1991. Neither the Federal Republic in the West nor the Democratic Republic in the East⁴⁰ were sovereign states⁴¹. The partitioned former Third Reich capital Berlin, under a four party-regime of the former wartime allies, or the modification of the Eastern border to compensate Poland (a quarter of pre-wartime German national territory⁴²) could count as symbols of this uneasy situation. The Federal Republic claimed to represent the former German state in its 31 December 1937 borders, well until the end of the 1960s⁴³. As well West as East Germany started from a handicapped position on the international level. Recognized and acting in international organisation, they were still nonetheless “non-sovereign entities”. Their decisions depended on the agreement of the quadripartite conglomerate of France, Britain, the USSR and the US.

16Bringing West Germany in the North Atlantic Treaty Organisation, as happened in 1954⁴⁴, implied a considerable concession. The Federal Republic had to renounce the production or use of atomic, biological or chemical weapons⁴⁵. There again, even if the financial or industrial capabilities would have been present, Germany would have to fight a diplomatic battle without end to build nuclear weapons itself, as Britain and France could do freely. Moreover, West German diplomacy had to get its international partners to abstain from any recognition of the DDR. The so-called Hallstein-doctrine implied that West Germany posed the non-recognition of East Germany as a precondition in diplomatic affairs⁴⁶.

II. “Entrepreneurs of Europe⁴⁷” and traditional legal science

“Tandis que les hommes d’État débattent, sans ménager le poids de leur autorité et la fougue de leurs convictions […] les juristes […] s’emploient à la naissance, discrète mais lourde de promesses, d’un droit européen.”

Michel Gaudet, 1963⁴⁸

“Rien n’est possible sans les hommes, rien n’est durable sans les institutions.”

Jean Monnet, Mémoires⁴⁹

17Although it might seem tempting to interpret the legal history of European integration with hindsight, the emergence of a legal discourse advocating a separate legal order was far from evident to the majority of European continental jurists. Resistance to the theory of supranationalism came both from national public law⁵⁰ and public international law. Mainstream internationalist doctrine continued in line with the post-World War I consensus, emphasizing consensualism (as expressed in the PCIJ’s Lotus case (1927⁵¹) and –thus- the precarious legal personality of any institution built on agreement between states⁵². State sovereignty was unlimited, save for explicit limitations agreed to by the states themselves⁵³. Looked at from a distance of half a century, the emergence of key concepts as primacy or direct effect of European law seems evident⁵⁴. Yet, the opposition we will describe in the next part (B) between the French political discourse, on one hand, and the vertical integration of the Atlantic world, on the other hand, was not merely one between politics and the legal professions⁵⁵.

18 Instead, both a “weak” and a “strong” programme on the Rome Treaties lived in academia⁵⁶. The former saw the treaties creating three European communities as a coincidental whole of four separate international instruments, organising coexistence between states⁵⁷. The Commissions’ legal services, backed by business lawyers acting for (mainly American) multinational corporations⁵⁸, advocated that the treaties formed a constitutional bloc, installing a hierarchy between two separate legal orders, the national and the supranational. The traditional internationalist conception saw European community law as a political law, whereby political agreements between equal and sovereign partners continued as the sole source of law. Yet, Institutional⁵⁹ discourse, produced by the organs created by the treaties, saw the judge, and in the case of competition, the administration, as law creators themselves. This, in turn, had as a consequence that transnational economic activity would create an ever closer union de facto, whereas the traditional conception saw this as the mission of politicians and high government officials within each state. Finally, unification through the renvoi-procedure of art. 177 EEC allowed to bypass intergovernmental and national political procedures to let European law prevail in concrete cases⁶⁰. In other words, the European jurist’s interpretative habitus would be shaped in Brussels and Luxemburg⁶¹, away from the legicentrism of the national legal order, where top-down law-making prevailed⁶².

19 During the critical formation years in the 1950s, the legal advisors at the Auswärtiges Amt in Bonn⁶³ had strong ties with future commission president Walter Hallstein, who taught at the University of Frankfurt: the legal historian and diplomat Wilhelm Grewe (1911-2000⁶⁴), future secretary of state and Federal President Karl Carstens (1914-1992, also professor at the University of Cologne⁶⁵), Carl Friedrich Ophüls (1895-1970, diplomat and professor of international law at Frankfurt⁶⁶), Ernst Steindorff (°1920, Hallstein’s former assistant, and professor at the University of Munich⁶⁷) and Hermann Mosler (1924-2001, professor at the University of Frankfurt and director of the Max Planck Institute for International Law and Comparative Public Law, future ECHR and ICJ judge⁶⁸). From the French side, the Quai d’Orsay and traditional high administration provided the ECSC and EEC with its finest civil servants: Emile Noël (1922-1996), former chief of cabinet to Prime Minister Guy Mollet (1905-1975), as Secretary-General of the Commission or Michel Gaudet (1915-2003), head of first the ECSC and then the EEC’s legal service (whose numbers rose from 12 to 80 in the sixties⁶⁹). Not surprisingly, the European institutions’ working languages were French –predominantly- and German⁷⁰.

20The following part, which deals with de Gaulle’s opposition to the ongoing enterprise of unification through law, shows the resilience of the alternative narrative. Traditionally, normative indeterminacy (or: the vagueness of treaty clauses agreed between states) provided diplomats and their legal advisers with a mandate to elaborate a hybrid politico-legal discourse. The European integration process, however, delegated this function to the court⁷¹.

I. Franco-German Friendship, A New Balance for Europe¹⁰⁴ ?

“Le traité franco-allemand n’avait pas été conçu seulement pour sceller la réconciliation des deux peuples. Devant les réticences de nos partenaires du Marché commun à s’engager sur le plan politique, il devait servir aussi de base à une union franco-allemande possédant ses vues, ses idées, sa politique.”

Couve de Murville, 7 July 1964¹⁰⁵

“Les traités sont comme des jeunes filles et des roses: ça dure ce que ça dure. Si le traité allemand n'était pas appliqué, ce ne serait pas le premier dans l'Histoire.”

Charles de Gaulle to the UDR-parliamentary fractions, 3 July 1963¹⁰⁶

27Having arrived in power as Prime Minister in 1958, Charles De Gaulle personally cancelled a trilateral agreement between France, the Federal Republic of Germany, and Italy. The three countries had teamed up in 1957 to jointly produce nuclear weapons, confirmed by a 1958 co-financing agreement on an isotope separation machine at Pierrelatte (France)¹⁰⁷. This was hard to reconcile with the Federal Republic’s 1954 renunciation to ABC weapons¹⁰⁸. Instead, De Gaulle offered Adenauer a separate bilateral cooperation, and, at the same time, courted Macmillan and Eisenhower for a tripartite directorate in NATO¹⁰⁹. This last step meant that France would render the other Western European partners dependent on her, and at the same time obtain a joint veto with Britain on the use of American force¹¹⁰. Britain, in the meanwhile, had turned away from France, signing a bilateral agreement at the Bahamas-summit late 1962¹¹¹.

28De Gaulle’s schemes for European integration saw Franco-German cooperation as the logical reaction to American-led integration of the Western bloc¹¹². British-American separate meetings had irritated Konrad Adenauer as well¹¹³. Yet, from a German perspective, the French plans were ambivalent. On one hand, they could provide an alternative to complete dependence on American force¹¹⁴, as the United States were shifting their priorities to Asia¹¹⁵. Yet, on the other hand, they might give the USSR the impression of a divided –and thus vulnerable- Western bloc, and lure the United States into isolationism¹¹⁶.

29For America, paying for 350 000 troops on the ground in Europe was an expensive affair¹¹⁷. Robert McNamara (1916-2009), Kennedy’s Secretary of Defence, openly advocated a “flexible response” strategy from 1962 on¹¹⁸. This implied that the United States would determine in which circumstances the USSR would sufficiently have altered the balance of power between the two blocs, to use nuclear firepower. Anything below this threshold would remain in the realm of conventional defence. Consequently, the European allies would have more to say, if they drove up the number of their own forces¹¹⁹, diminishing the financial burden for the United States¹²⁰. Yet -in spite of Kennedy’s rhetoric on a Grand Design or a new Partnership¹²¹- in case of a war, for Germany in particular, this could imply a penetration of enemy forces into its territory for a considerable distance¹²².

30Adenauer, to whom war meant attacks on Frankfurt or Munich, or battles behind the Elbe, Weser or Scheldt¹²³, and not theoretical confrontation on another continent, thousands of kilometres away, feared Washington might be tempted to conclude an agreement with the Soviet Union, at the expense of a divided Germany¹²⁴. Logically, Adenauer turned to de Gaulle, albeit in a balancing act between Washington and Paris. The Chancellor relied on American diplomats and politicians active in the preceding decade¹²⁵, with whom he had built a relation of confidence, e.g. John McCloy (1895-1989)¹²⁶ or Dean Acheson (1893-1971)¹²⁷, and simultaneously constructed a personal friendship with de Gaulle, from his 1958 visit to Colombey-les-deux-Églises on¹²⁸. Conversely, de Gaulle never questioned the fundamental Franco-American alliance¹²⁹.

31On 18 July 1961, the heads of government of the Six EEC member states solemnly declared their intention to enact the Treaties of Rome’s intentions to found a political union, through the creation of a commission, under the presidency of the French diplomat Christian Fouchet¹³⁰. From the beginning on, the question of political union was intertwined with that of British accession. Britain had stayed out of the ECSC in 1951, both since it had important commercial relations with the Commonwealth-countries, and because it preferred the transformation of the Organisation for European Economic Cooperation to a genuine pan-European free trade zone¹³¹. Both the Benelux countries and Germany were in favour of a narrow cooperation with a prospective new big member state, which would serve to balance French influence.

32France, on the other hand, was eager to push through plans for a union of European states, encompassing the existing institutional structures (Council of Ministers, Commission, Parliament, Court of Justice). The European Political Union would constitute an umbrella over the Economic Communities. The European Commission would not have competence in the Political Union’s matters, but instead be replaced by a purely administrative organ¹³². Two organs would be necessary: a Council, consisting of the heads of state and government and ministers for foreign affairs¹³³, seconded by an administrative Secretariat. De Gaulle opposed the latter institution, since it suggested a taint of supranationality¹³⁴.

33In practice, the Council, operating as an intergovernmental organ and subject to the rule of unanimity, would have the residuary competence and thus become the prime mover for any new European policy¹³⁵. In other words, whereas the proponents of economic integration saw the fusion of the sui generis institutions of the three Communities as the spearhead of European Union, the French tried to proceed the other way round. Council of Ministers, Commission and Parliamentary Assembly¹³⁶ would first be subjected to the intergovernmental Council, to be merged in an ulterior phase¹³⁷. The primacy of the intergovernmental modus operandi had considerable consequences. If a new policy did not meet with unanimous agreement, it would either have to be carried on outside the European institutional framework¹³⁸, or would necessitate the opposing country’s deliberate absence, in analogy with the USSR’s abstention in the UN Security Council¹³⁹. In essence, France and Germany tried to avoid a formal, individual veto by the smaller member states, but, instead, tried to retain an implicit joint veto by the major powers¹⁴⁰.

34Again, in the French view, the problem of British accession would be solved by distinguishing membership of the (political) European Union from the (economic) European Communities, the latter being a precondition to the former. Consequently, Britain could adhere to the EEC, if the Political Union would have taken over the bulk of the integration process, to possibly find the door of the main organ, the new intergovernmental international organisation, shut¹⁴¹. The central role of law in the European integration process through the Court consequently risked to be reined in, as the Luxemburg judges would not have competence over the structures responding directly to the organs of the European Political Union¹⁴². Moreover, the Political Union would be financed by member states’ contributions, without interference of the Parliamentary Assembly¹⁴³, whose role was finally reduced to the screening of an annual report submitted by the Council¹⁴⁴.

35The Plan was damned. France’s emphasis on sovereignty and on an institutional two-track between European Economic Communities and Political Union was irreconcilable with the other member states’ views, who saw the existing Communities as the only possible framework for an enlargement of their cooperation¹⁴⁵. Even for its most convinced sponsors within the EEC, British accession was tied to a pure acceptance of the acquis of European integration by the British (‘ohne Reserve’¹⁴⁶). By contrast, sensitive issues as agriculture, coal and steel, textiles or voting rights in the Council of Ministers would provide substantial negotiation issues¹⁴⁷. Yet, even if the Netherlands and West Germany abandoned their initial precondition about British EEC-membership¹⁴⁸, the institutional aspects of the French proposal inevitably backfired¹⁴⁹. The intergovernmental Grand Design was stalled.

36Consequently, Adenauer suggested to leave the European Political Union in suspense¹⁵⁰ and to move on with Franco-German cooperation, in a classical bilateral treaty, outside the Communities’ legal framework.

37Horst Osterheld (1919-1998)¹⁵¹, Adenauer’s chief adviser in foreign affairs, feared for a complaint with the Federal Constitutional Court in Karlsruhe against a too exclusive Franco-German pact¹⁵². Yet, the battle was fought in the CDU fraction, and not in court: Adenauer’s party compelled the Chancellor to insert a preamble¹⁵³ radically opposite to the actual aims of de Gaulle: Germany reaffirmed its ties with the US, and the aim to admit Britain to the EEC¹⁵⁴.

38Outside of Europe, De Gaulle’s ideas had more appeal. According to Chinese archives, the multipolar discourse provided the “intellectual justification and foundation” for Mao’s rapprochement with France¹⁵⁵, culminating in the recognition of the PRC on 27 January 1964, an act condemned by both the United States and the Federal Republic of Germany¹⁵⁶. Frustrated as France with the Limited Nuclear Test Ban Treaty, and annoyed by Soviet rivalry for dominance in Central Asia, Mao turned away from support to Algeria or Indochina, two very sensitive arena’s where he confronted France¹⁵⁷.

39Going out into the wider world, from which it had retreated as a colonial power, France now had “bargaining power” between the Communist bloc and the US¹⁵⁸. France had succeeded its decolonisation of Algeria¹⁵⁹, and could purport to play the role of impartial mediator. Yet, the margins were reduced, as concessions America made or military actions undertaken in one sphere of the globe, could have their repercussions in the theatre most vital to France: Europe¹⁶⁰.

40British accession was largely conditional to a choice of the EEC over the Commonwealth¹⁶¹. At the time of the Schuman-Monnet-plan, Britain had declined invitations to join¹⁶². Likewise, transatlantic economic integration and the EEC were two different processes¹⁶³. De Gaulle saw Britain as a bridgehead linking these two processes, and well to the detriment of the latter¹⁶⁴. Finally, the legal framework of the Communities was used by de Gaulle to force Britain to choose the EEC over its other engagements, such as EFTA:

41“On a fait la Communauté des Six, d’ailleurs sans moi, on aurait pu faire autre chose : une zone de libre-échange européenne, qui aurait peut-être mieux valu. Mais c’est la Communauté qui a été faite avec ses règles et ses conditions et qui a été une réalisation pénible. Là-dessus, vous arrivez. Comment allez-vous être là-dedans ? Mettez-vous à notre place¹⁶⁵.”

II. Erhard, or desilussion

42De Gaulle’s Grand design to form a Franco-German tandem leading the Six on an independent and “truly European” course failed. As Ludwig Erhard took over the Bundeskanzleramt in 1963, Germany firmly chose Washington over Paris as its privileged partner¹⁶⁶, symbolised by the personal sympathy between Lyndon Johnson¹⁶⁷ and the new Chancellor, who met already in December 1963, and the ensuing commercial weapons agreement (5 November 1964). This reflected a fundamental difference in political ideas. Whereas De Gaulle (or Adenauer¹⁶⁸) firmly camped on traditional high politics¹⁶⁹, Erhard, “Father of the DMark” saw the economy as the most important field¹⁷⁰ and relied completely on the United States for defence¹⁷¹. De Gaulle’s political and legal positions were incomprehensible to him¹⁷², and were seen as the causes of transatlantic trouble¹⁷³. In this respect, Erhard echoed American interpretations of rising nationalism in Europe¹⁷⁴ or the perceived inadequacy of the nation-state with regard to 20^th Century problems¹⁷⁵, leading e.g. Dean Acheson to qualify British insistence on a national nuclear defence as “English Gaullism¹⁷⁶”. De Gaulle, in turn, found Erhard had no original political opinions, and seemed at a loss to construct his foreign policy¹⁷⁷.

43For Erhard, de Gaulle maliciously kept Britain and the EFTA countries at a distance¹⁷⁸, contrary to German economic interests¹⁷⁹. The German Chancellor abhorred of EEC bureaucracy¹⁸⁰ or political bargaining and aspired to a “functional economic integration of all free countries in Europe¹⁸¹.” This is a fundamental difference between French and German conceptions. Whereas the latter saw Atlantic and economic integration as a pathway to prosperity and progress, the former adhered to a revival of nationalism, or, popular legitimacy for sovereign states, which would inevitably lead to different outcomes around the world, and thus to a multipolar world¹⁸². For Erhard, who made a staggering career after decades of relative discretion as a university professor, 1945 had been Stunde Null for the world as well¹⁸³. De Gaulle, on the other hand, saw a continuous history of Europe, and recurring patterns in geopolitics as the main mover of foreign policy¹⁸⁴.

44As German-German questions were concerned, France steered on the course of détente¹⁸⁵, aimed at a consensual end to the Cold War. Yet, for the Federal Republic, talks with the “Sovietische Besatzungszone” were much more delicate. In the follow-up of de Gaulle’s NATO-decision, Foreign Affairs minister Maurice Couve de Murville bluntly declared to his German colleague Gerhard Schröder¹⁸⁶ that:

45“Deutschland ja nicht nur geographisch im Zentrum Europas liege, sondern auch im Mittelpunkt der europäischen Probleme. Frankreich könne hierzu allerdings nichts tun. Da lege Wert auf die Entwicklung seiner eigenen Beziehungen, die es für nützlich halte, und habe die Absicht, auf diesem Weg fortzuschreiben. Man würde es auf französischer Seite für nützlich halten, wenn andere europäische Länder den gleichen Weg einschlagen würden, könne sie aber nicht in diesen Sinne beeinflussen¹⁸⁷.“

I. Hallstein’s bold reform plan

“Il n'est pas imaginable que, le 1er janvier 1966, notre économie soit soumise à une règle de la majorité qui nous imposera la volonté de nos partenaires, dont on a vu qu'ils pouvaient se coaliser contre nous. Il faudra profiter de l'occasion pour réviser les fausses conceptions qui nous exposaient à subir le diktat des autres. Révisons cette stupidité!”

De Gaulle at the French Council of Ministers, 7 July 1965¹⁹⁷

49At his 9 September 1965 press conference, De Gaulle characterized the European Commission as an “aréopage technocratique, apolitique, irresponsable”. Commission President Hallstein was the direct cause of this outburst¹⁹⁸, as he had presented bold plans for reform to the European Parliamentary Assembly in Spring 1965 (23 March¹⁹⁹). For the Commission, article 155 EEC, specifying its coordinating role with regards to national policies, was insufficient. Hallstein was in favour of a stronger structure, whereby the Parliamentary Assembly would directly control the Commission’s budget, as the Bundestag did in the German Federal Republic²⁰⁰.

50The issue of CAP financing would lead to a confrontation on the big lines: traditional international law-consensualism versus European law-activism. The Commission put forward its proposals for a financial settlement on 1 July 1965, linking the completion of the CAP’s financing to a far more structural decision to attribute custom revenue directly to the Community, under parliamentary control²⁰¹. This “serment de jeu de paume²⁰²” was a bridge too far for de Gaulle, who abhorred of the idea of a supranational regalian “state” and had previously strongly opposed the accreditation of diplomats to the Commission. Handing over a genuine budget to the European Parliament (“l’Assemblée de Strasbourg”) would turn the intergovernmental Council of Ministers from legislator to a second chamber, equivalent to the German Bundesrat or the French Senate²⁰³.

51Moreover, the Treaty of Rome on the EEC foresaw in its article 148 that, from 1 January 1966 on, decisions within the Council of Ministers would be subject to Qualified Majority Vote²⁰⁴, abandoning the traditional interpretation of equality between sovereign states²⁰⁵. Consequently, the CAP’s financing agreement, which came at an end on 30 June 1965, could be revised by the Five other members states if no consensus was reached²⁰⁶. When bilateral Franco-German talks on CAP financing broke down in July 1965, de Gaulle decided to take advantage of Hallstein’s faux pas²⁰⁷, and to block the European institutions²⁰⁸.

II. “A la fin de l’année, on les ramassera à la cuiller²⁰⁹”: France against supranationality

“Mon cher ami vous nous proposez quelque chose que nous n’aimons pas : l’adhésion de l’Angleterre et pour nous le faire accepter, vous y ajoutez quelque chose que nous détestons encore beaucoup plus, qui est la supranationalité, donc vous n’avez aucune chance de nous convaincre.”

Jean-Marc Boegner (French permanent representative to the EEC) to Robert Toulemon, chief of cabinet to Robert Marjolin (Vice-President of the Commission)²¹⁰

52On 6 July 1965, the French permanent representative at the COREPER quit his seat²¹¹. Two months later, Charles de Gaulle sent out a crossfire of verbal missiles against the supranational conception of European integration²¹². In private, the President equalled the introduction of Qualified Majority Voting in the Council of Ministers to the loss of French sovereignty²¹³, called for a revision of the treaty, implying abandoning supranationality and QMV altogether, and for the dismissal of the whole Commission²¹⁴.

53The chances of success were extremely reduced, not to say inexistent. France’s partners were shocked at this challenge to the very core principles behind the European treaties²¹⁵. De Gaulle counted on bilateral talks between France and its EEC partners, completely bypassing their common institutions, thus, in practice applying the Fouchet Plan, which they had refused earlier²¹⁶. France’s trump card was that it could not be missed in the European integration process, and the essential sovereign consent-underpinning of the European treaty²¹⁷. However, making this argument hard required either an exit from the EEC (which implied abandoning the hard-fought CAP, which served as a counterpart to the German-desired customs union²¹⁸), or a treaty revision (which required unanimity). If France did not go this far, its representatives’ absence at the Council of Ministers would not necessarily put a stop to EEC activity²¹⁹. Moreover, French Presidential elections, which took place in the month of December, were a warning to de Gaulle, who fell short of a majority in the first round (44,64%) and was criticised by pro-integration centre candidate Jean Lecanuet (15,57%)²²⁰.

54Finally, an exceptional Council of Ministers was scheduled in Luxemburg for 13 and 14 January 1966, a good month after the French Presidential elections. This meeting initiated the final phase of discussions. France’s bilateral strategy had failed, since the other member states held on to the common forum to resolve the question²²¹. Consequently, a treaty change to accommodate French wishes was excluded. Instead, de Gaulle counted on a multilateral protocol declaration, serving as an interpretation of the treaty²²². Unanimity would function as the primary objective of EEC talks, irrespective of the possibility to apply QMV. Any state which felt threatened in its essential interest, could object to a potentially harmful decision. On 29 January 1966, at the end of a six month-rhetorical struggle, the five other member countries accepted an interpretative declaration on QMV²²³, as well as a French-inspired “heptalogue” of seven points to rein in the Commission’s activities²²⁴.

55The final text stated that, in case of a potentially harmful decision to vital interests of one of the Member States, the other Council members will elaborate a solution agreeable to all of them, and the interests of the Community. In the French interpretation, this amounted to the formal engagement to pursue discussions (and not proceed to a vote) until a final deal was reached²²⁵. In case of failure, disagreements persisted between France and the five others. The minutes of the meeting of the Foreign Ministers on 28 January 1966 mark the ambiguous character of the first compromise²²⁶:

56Couve de Murville: “Si le traité [de Rome] n’est pas changé, les règles sont aussi inchangées. Évidemment si vous passez outre, il y a conflit.”

57Werner [Luxemburg]: “Excluez-vous l’application du traité ?”

58Couve de Murville: “Je me tue à vous le dire depuis quinze jours.”

59Schröder: “Si après tous ces efforts, quelque chose reste non résolu, et que les cinq pays soient d’accord, le vote majoritaire est-il possible ?”

60Couve de Murville: “[…] La question de M. Schröder me paraît académique, car si les cinq passaient outre, ils feraient par définition des choses non raisonnables.”

61Schröder: “Que ferez-vous ?”

62Couve de Murville: “Ou bien nous accepterons, ou bien il y aura une histoire sérieuse […]. Il faut distinguer entre le droit et la politique. La Communauté doit fonctionner par accord. Le droit reste inchangé. Il y a les conséquences politiques.”

63The eventual compromise, an “agreement to disagree”, could be interpreted in all possible ways, to such an extent that the question could be asked if it had altered anything to the letter of the EEC Treaty²²⁷. More fundamentally, who was to identify a “vital national interest” able to temporarily invalidate QMV²²⁸ ? For France, an individual member state decided in a discretionary way. For Germany, on the other hand, fixing the threshold was a collective competence²²⁹. Why should the other states rely on a unilateral statement by one of the partners²³⁰? In the German view, even the horizontal, or traditional treaty-based strand of European integration, was submitted to the common obligation to coordinate economic policy, contained in Article 6 EEC²³¹. A non-agreement on the non-application of the majority rule equalled its confirmation²³². In any case, the sanction in case of an effective QMV-outcome against France could not be anything but a political one (cf. Couve de Murville: “il y aura une histoire sérieuse”). In theory, political agreements have their sanction in the reciprocal character of the agreement. In the case of the Luxemburg compromise, France was the sole beneficiary²³³.

64Yet, the political impetus of European integration had changed under the menace of a looming “Veto culture”²³⁴, which, in the short run, assured France not to be outvoted in agricultural issues, and Germany not to know the same fate in the Kennedy Round (GATT) negotiations²³⁵. On middle-term basis, discussions in Council, Commission or Parliament turned away from grand designs of further integration, and concentrated on technical matters²³⁶. In the short run, at a procedural level, France insisted on preliminary Commission contact with the member states through the permanent representatives at the council²³⁷. Equally, the Commission could not render public any document before their formal delivery to Member States²³⁸ and the presentation of letters of credence by third-party diplomats became the affair of the Council of Ministers, as well as the Commission’s president²³⁹.

65In the long run, the recognition of an essential national interest did not disappear, as Mosler thought it would²⁴⁰. Instead, it provided arguments for new member states, such as the United Kingdom (1972) to insist on concessions during the preparatory stage of Commission proposals²⁴¹, and can still serve as a political pressure argument today, irrespective of the precarious legal status of the (non-)agreement²⁴². Its finality, however, is not that of provoking a rupture, but of moving the need for compromise on essential interests forward in the institutional mechanics.

I. Prelude to separation

“Que voulez-vous que j'en attende ? L'OTAN ne sert à rien: il ne peut rien s'y passer! Tout ça, c'est zéro, zéro, zéro. C'est fait pour faire vivre des fonctionnaires internationaux qui se font payer grassement à ne rien faire, sans verser d'impôt.”

de Gaulle on the May 1964 NATO summit²⁵²

69Initially, de Gaulle went for a “European” defence. When it became clear, with the failure of the Fouchet negotiations (1962) and the subsequent preamble to the Elysée Treaty (16 May 1963), that this would not work, de Gaulle steered on a firmly national course²⁵³. On 27 April 1964, de Gaulle withdrew the French officers from NATO’s naval command. Three months later, in his 23 July 1964 press conference, the General buried the German attempt to pool nuclear forces within NATO, by attacking the Multilateral Force (MLF), which would still mean that the Americans would decide on the effective use of nuclear power²⁵⁴. For the Federal Republic of Germany, “full integration²⁵⁵” meant access to participation on a vital defence issue. However, for France, it meant downgrading its autonomy. Consequently, although the idea had initially been put forward as a sign of America’s understanding of the Federal Republic’s feeling of discrimination²⁵⁶, Lyndon Johnson could only note the crisis within NATO, when he publicly abandoned the very idea of an MLF on 21 December 1964²⁵⁷. Yet, this did not appease France: in May 1965, de Gaulle announced that his country would not take part in planned joint NATO manoeuvers. The decision to leave the integrated military structure had been taken by de Gaulle and Couve de Murville, ahead of the December 1965 Presidential elections²⁵⁸.

II. Back to the treaty clauses ? French unilateral interpretation

70France did not leave the USA in a big suspense anymore: from 21 February (press conference) to the formal announcement on 31 March 1966, the retreat from any peri-contractual NATO structures (Military Committee, Permanent Group, Saceur²⁵⁹, Saclant²⁶⁰, Chinchan²⁶¹) was formalised²⁶². Alluding on the clausula rebus sic stantibus in international law²⁶³, de Gaulle argued that anything beyond a contractual alliance could not be binding anymore for France. Invoking national independence and sovereignty, NATO-troops were asked to leave the French national territory²⁶⁴. From a legal point of view, the decisions (unanimously) taken by the Atlantic Council, allowing for the creation of the commandment structures after the Korean War, were considered as merely indicative, and thus insufficiently explicit to limit French sovereignty²⁶⁵.

71“Flabbergasted²⁶⁶” American diplomats saw De Gaulle as a “twentieth-century Don Quixote²⁶⁷”. Rationally looked at French (or British) independent fire power, a European nuclear defence without American participation would amount to “eine Kombination von Zwergen²⁶⁸”. Moreover, France did never question its fundamental allegiance to the United States in the world conflict, and –since 1776- had never engaged in a military confrontation with its ally overseas²⁶⁹. Finally, France was not deprived of its veto right within the NATO structures, which foresaw the Atlantic council’s supreme authority. Couve de Murville declared at the Assemblée Nationale that, indeed, the problem did not reside with the absence of a veto, but with the incompatible interests of the United States, which, as a global power, had potential casus belli, well outside of France’s reach:

72“"Il ne s'agit pas tant de pouvoir faire ce que l'on veut que de ne pas être entrainé à faire ce que l'on ne veut pas.²⁷⁰”

73However, with regard to the very restricted probability of an actual military confrontation, Cold War-defence issues boiled down to psychological issues²⁷¹. Both Washington’s and Moscow’s enormous military build-up could be termed “apocalyptic, and thus insignificant²⁷²”. The perception of a state’s capability to keep an aggressor at bay was not an absolute, but a relative phenomenon. An expensive investment in nuclear capabilities was not designed to wipe out any potential aggressor, but to affirm a minor power’s existence on the world stage in case of a conflict between the two big powers²⁷³. Consequently, the key issue for the two superpowers was to ensure their allies had confidence in the over-arching strategy. A purely theoretical or technological monopoly was insufficient, since the superpower would always intervene in case of a conflict involving its main competitor²⁷⁴. In the French case, “measures contradictory to those of the US were thus in a sense supported by the American nuclear umbrella²⁷⁵”.

74De Gaulle had to have recourse to bilateral negotiations with the Federal Republic to station troops on its territory²⁷⁶. Isolated from Germany as well²⁷⁷, the French President publicly castigated Ludwig Erhard’s government (28 October 1966 press conference). Yet, in turn, Erhard could not afford to be portrayed an Einzelgänger within Germany²⁷⁸. Konrad Adenauer, who had retired from public office in 1963, had launched his attack far earlier, almost from the moment he resigned as Chancellor²⁷⁹. From the start of his tenure on, Erhard had the impression to be more supported by outside partners than within his own party²⁸⁰. Irrespective of the CDU/CSU-FDP coalition’s electoral victory in October 1965, Adenauer even asked for its replacement by a Grand Coalition with the SPD (3 January 1966)²⁸¹. The day before de Gaulle’s public invective, the liberal ministers had resigned from Erhard’s government, leading to his personal exit (1 December 1966). The new Chancellor, Kiesinger, dropped his support for de Gaulle’s other opponent, Walter Hallstein, who could not preside over the newly merged European Commissions²⁸².

75De Gaulle’s attitude towards NATO has cast its long shadow on French Foreign policy²⁸³, as well as on the questions discussed within the alliance²⁸⁴. At the time of the 1966 decision, public opinion did not support de Gaulle’s NATO stance²⁸⁵. It took France until the Sarkozy presidency (2007-2012) to reintegrate the military structures²⁸⁶.